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TMI Blog2008 (2) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... f this application for withdrawal of Misc. Application No. 109 of 2007, in view of the filing of fresh application under section 14 of the Limitation Act. It may be noticed here that C.M. No. 109 of 2007 under section 5 of the Limitation Act and the accompanying appeal were presented before this Court on 15-5-2007. Upon notice, respondent Nos. 1 and 2 who are the contesting respondents have filed their detailed objections and opposed the application. 2. Both the sides made their detailed submissions on the question of limitation. It may be useful to briefly notice the circumstances delaying the filing of the present application and the appeal before this Court. 3. The appellant, herein, filed company petition under sections 397 and 398 of the Companies Act, 1956, before the Company Law Board being C.P. No. 114 of 2006 and also C.A. No. 428 of 2006, wherein interim direction was sought which has been declined vide order impugned dated 24-11-2006. An appeal under section 10F of the Companies Act, 1956, against this order was filed in the Hon'ble Delhi High Court being Co. A. (SB) No. 2 of 2007 accompanied with C.A. No. 183 of 2007 on 17-2-2007. The matter was taken up on 19-2-2007, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent) Act, 2002] may file an appeal to the High Court within 60 days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order : Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days." 9. The period of limitation prescribed for preferring an appeal is 60 days. The period, however, can be extended for a further period of 60 days in view of the proviso to section 10F. It is relevant to note that the language of section prohibits the extension of period beyond 60 days as is evident from the expression "further period not exceeding sixty days". 10. In view of the language used in section 10F, it has been argued on behalf of the respondents that the period of limitation for filing the appeal is sixty days from the date of the passing of the impugned order and it can only be extended up to another 60 days on sufficient cause being shown and not thereafter. Order impugned was passed by the Company Law Board on 24-11-2006 and sixty days period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on permission granted by the Court under rule 1 of that order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature." 12. From the language of section 14(1) and (2) itself it appears that it applies to the suits and applications, respectively. Based upon this language, it has been argued on behalf of the respondents that the period spent in the Delhi High Court in pursuing the appeal before the wrong forum/court cannot be excluded. Both sides have referred various judgments. In Sudama Rai v. Bisheshar Prasad AIR 1935 All. 92, it was observed as under :- "Section 14 of the Limitation Act, is not applicable to appeals. But under section 5, Limitation Act, it is competent to a court to admit an appeal after the expiry of the period of limitation if the appellant satisfied the court that he had sufficient cause for not preferring an appeal within the prescribed time." (p. 93) 13. In Munshi v. Punna Ram AIR 1974 Punj. & Har. 229, a Division Bench of this Court considered the question of applicability of section 14 of the Limitation Act to the appeals and held as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 226 of the Constitution was never in dispute. In fact, the writ petition itself was filed within the period of three months from the date of the service of the order and there can be no doubt that it is in the view that the order was without jurisdiction they sought to invoke the jurisdiction of the High Court under article 226 of the Constitution before filing an appeal and not to bypass the appeal as such." (p. 385) 15. In Khilloni v. Municipal Committee [1995] 1 Punj LR 643, it was observed :- "The appellant while filing the appeal in the Court of District Judge made prayer for condonation of delay in terms of section 5 and for exclusion of time for bona fide prosecuting the appeal under section 14 of the Limitation Act. Section 14 of the Limitation Act specifically deals with such a situation. It permits exclusion of time of proceeding bona fide in a court without jurisdiction. It has not been suggested by the respondent that the appellant had been at any stage negligent or careless. This beneficial provision contained in section 14 of the Limitation Act is in fact intended to help the persons who under mistaken belief had been prosecuting the matter but before a wrong forum. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 14 of the Act and to exclude the period during which he had been prosecuting with due diligence another civil proceeding. It is not necessary that such a civil proceeding should be by way of civil suit only. In other words, if the plaintiff has been bona fide pursuing his remedy for vindication of his civil rights, such a proceeding shall be covered by the words 'civil' proceeding as used in section 14 of the Act." 18. In Badlu v. Shiv Charan [1980] 4 SCC 401, it was observed as under :- "... Moreover, it is well-settled that if a litigant is pursuing a bona fide civil proceeding with due diligence and in good faith in any appeal or revision he is entitled to the exclusion of the time taken in such proceeding. The combined effect of sections 5 and 14 of the Limitation Act would, therefore, undoubtedly entitle the appellants to exclude the time taken by them while the appeal was pending before the Additional District Judge. In this view of the matter, it is manifest that the senior sub-judge was fully justified in condoning the delay and the High Court was, therefore, clearly wrong in allowing the appeal and set aside the judgment of the senior sub-judge on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of limitation. 21. In addition to the above submission, he has further argued that the benefit of section 14 is available only to a diligent litigant who has been pursuing the remedy bona fide and not in a callous manner. Section 14 itself provides for exclusion of time where the remedy has been pursued in a wrong court/forum with due diligence and in bona fide manner. From the interlocutory orders passed by the Hon'ble Delhi High Court it appears that appeal was instituted on 17-2-2007 and it came up for consideration on 19-2-2007 and on that very day, the question of jurisdiction of the court was raised relying upon the judgment of the Apex Court in the case of Stridewell Leathers (P.) Ltd. v. Bhankerpur Simbhaoli Beverages (P.) Ltd. [1994] 79 Comp. Cas. 139. The Hon'ble Delhi High Court passed the following order :- "Learned counsel for the appellant has contended that the appeal is maintainable in the Delhi High Court as the cause of action has arisen at Delhi where the head office of the company is situated and where the resolutions impugned by the appellant appointing other directors were passed without notice to the appellant though even the quorum as contemplated unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond limitation. There is no affidavit of counsel who filed appeal before the Delhi High Court to show bona fide mistake regarding period of limitation as stated in the application under section 5 of the Limitation Act filed before the Delhi High Court. Under similar circumstances a Division Bench of this Court refused to condone the delay in Classic Ispat (P.) Ltd. v. Janak Steel Tubes Ltd. [1998] 93 Comp. Cas. 165 , wherein, it was observed as under :- "On a perusal of the averments made in the application and the affidavit, it becomes clear that the applicant has miserably failed to show that the delay in filing of the appeal has been occasioned due to bona fide mistake. The affidavit of the director of the company cannot with any element of justification be made the basis for recording a finding that the advocate who filed Letters Patent appeal against the order of the learned company judge did so under a bona fide mistake. The applicant has not explained as to why the affidavit of the concerned counsel has not been filed. That apart, the averments made in paragraph 4 of the application do not even disclose the name of counsel who filed the Letters Patent appeal. Likewise, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." 25. There is no dispute that the Companies Act, 1956, is a special law. Under the normal circumstances, the provisions of the Limitation Act will have application to all appeals and applications under the Companies Act, unless a different period of limitation is prescribed. As noticed herein-above, the company law itself has prescribed a period of limitation for filing the appeal and also for condonation of delay. Hence, condonation of delay for filing the appeal beyond the prescribed period of limitation is by virtue of the proviso to section 10F. This proviso can be considered to be akin to section 5 of the Limitation Act. However, the proviso imposes limitation for extension of time in filing the appeal beyond the prescribed period of limitation, the expression used in section 10F being "further period not exceeding sixty days". It has been argued by Mr. Rawal, advocate, on behalf of the appellant that the Companies Act does not exclude the application of section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996 Act'). ****** As far as the language of section 34 of 1996 Act is concerned the crucial words are 'but not thereafter' used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act, and would, therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award, beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result." (p. 624) 29. In another case Gopal Sardar v. Karuna Sardar [2004] 4 SCC 252, while considering the provisions of the West Bengal Land Reforms Act, 1955, in the light of section 29(2) of the Limitation Act, 1963, made following observations :- "13. Section 8 of the Act prescribes definite period of limitation of three months or four months, as the case may be, for initiating proceedings for enforcement of right of pre-emption by different categories of people with no provision made for extension of application of section 5 of the Limitation Act. When i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65) 30. From the dictum of the aforesaid judgments, it is abundantly clear that where particular statute does not apply to section 5 of the Limitation Act expressly or even impliedly in a special or local law itself, it shall be presumed that the exclusion is express. Section 29(2) of the Act not only excludes the application of section 5 of the Limitation Act but also other sections from sections 4 to 24 (inclusive). Thus, section 14 also stands excluded from its application for purposes of either condoning the delay or exclusion of the period on the ground envisaged therein notwithstanding existence of sufficient cause. Thus, even if the period spent before the Hon'ble Delhi High Court constitutes sufficient cause for extension of period under section 5 read with section 14 of the Limitation Act, these sections cannot be applied de hors proviso to section 10F to extend the limitation beyond sixty days in addition to the original period of sixty days (total 120 days) for filing an appeal as proviso to section 10F does not permit such extension. Applying this principle enumerated hereinabove and the discussion, the maximum period available to the appellant for preferring the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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